13 N.Y. 587, Newton v. Bronson

Citation13 N.Y. 587
Party NameNEWTON v. BRONSON, executor.
Case DateMarch 01, 1856
CourtNew York Court of Appeals

Page 587

13 N.Y. 587



BRONSON, executor.

New York Court of Appeal

March 1, 1856

Page 588

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Page 590


J. Larocque, for the appellant.

I. S, Newton, for the respondent.


This action was commenced subsequent to the enactment of the Code of Procedure, and all the proceedings therein are subject to its provisions. It was tried by the court without a jury. The question principally discussed, in the printed briefs submitted by the counsel, is whether the purchase money mentioned in the contract for the sale of the premises in question was fully paid up by the plaintiff as assignee of the original vendee. Whether it was entirely paid or not depends upon the question whether the sum of $33.50, charged by Messrs. Ogden & Jones for their services respecting the mortgage of Erastus Newton, and deducted from the money paid by Isaac S. Newton to them, was properly retained by those gentlemen, or whether it ought to have been applied on the contract. This depends upon a variety of evidence, written and oral, and was purely a question of fact. There is no statement of facts found; but it is apparent from the judgment, as well as from the

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opinion of the judge before whom the case was tried at special term, that this sum was by the court allowed to the plaintiff on account of the moneys payable by his contract. The determination of questions of fact in this class of cases belongs to the supreme court, whose judgment upon such questions we have no authority to review. ( Dunham v. Watkins, 2 Kern., 556; Griscom v. The Mayor, & c., of New-York, Id., 586.)We shall therefore assume, as the supreme court has adjudged, that the whole purchase price of the land contracted for was paid.

There are, however, certain questions of law, which arise upon the pleadings and the conceded facts, which are properly before us:

1. The contract was for the purchase of lands lying in the State of Illinois, but the parties are residents of this state, and subject generally to the jurisdiction of its courts. The defendant's counsel insists that the court below had no jurisdiction in such a case to decree a specific performance. It is not denied but that such a jurisdiction existed in the court of chancery, nor but that it passed to the supreme court by the provisions of the present constitution. That concession could not be avoided consistently with a settled course of adjudication. ( Massie v. Watts, 6 Cranch, 148; Shattuck v. Cassidy, 3 Edw. C. R., 152; Ward v. Arredondo, 1 Hopk. C. R., 213; Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, Id., 606; Sutphen v. Fowler, 9 id., 280.) The cases in the English court of chancery will be found referred to by Chancellor Walworth in the last of these cases. The doctrine thus established is, that this court, having jurisdiction of the person of the defendant, will, by its process of injunction and attachment, compel him to do justice, by the execution of such conveyances and assurances as will affect the title...

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